INSIGHT FROM …
Terri Dougherty, J. J. Keller & Associates, Inc.
One of your workers returns from a week-long trip to Colorado and is chosen for a random drug test. He apparently enjoyed all the state had to offer, including legal recreational marijuana, and the test turns up positive.
He says he abides by Wisconsin law — he never uses the drug in the state.
Is there anything you can do?
For now, there’s plenty you can do, as marijuana remains illegal in the Badger State. However, the impact of the drug’s legalization elsewhere is felt here, and Wisconsin employers should know how to deal with issues when they arise. This includes being aware of these important facts:
What happens in Colorado doesn’t stay in Colorado … or eight other states. Recreational marijuana use is legal in nine states, and while your employee won’t get arrested for using it there, he or she could still be fired for doing so.
A drug test can detect marijuana days or weeks after it was last used. A person who travels out of state, uses marijuana and returns to work likely will test positive if a drug test is given. In Wisconsin, that’s a positive result for an illegal drug, and the person could be disciplined under your workplace drug testing policy. The worker might face suspension, employment contingent on completion of a rehabilitation program or termination.
Medical marijuana cards don’t count here. Marijuana is legal for medical use in 30 states, including Minnesota, Michigan and Illinois. However, a person authorized to use medical marijuana in one of those states doesn’t have license to use the drug in Wisconsin.
As a result, a person can’t point to a medical marijuana recommendation from a doctor as a valid excuse for a positive test for marijuana in Wisconsin. A positive test has consequences under your workplace policy, even if the employee has a medical marijuana card.
Legalization could be on the way. Bills have been proposed by the Wisconsin legislature that would legalize marijuana for medical or recreational use, but they have not advanced. However, an advisory referendum for medical and recreational legalization was on the ballot in 16 counties and two cities in the November midterm elections. This could put pressure on the state legislature to seriously consider the issue in the next session.
Not all medical marijuana laws are equal. The way medical marijuana laws are written has changed considerably since the first law was enacted in California in 1996. Each state law is different, and many of the newer laws provide more protections for medical marijuana users.
Some of the first medical marijuana laws stipulated that employers were not required to accommodate use of the drug, and courts ruled this meant that employers could discipline, refuse to hire or fire an employee who tested positive for marijuana, even if that person had a valid medical marijuana card.
However, some newer laws do not allow an employer to penalize a medical marijuana user based only on a positive test for marijuana. A law may also require employers to consider an accommodation for a medical marijuana user.
In addition, in some states, an employer cannot discriminate against a medical marijuana cardholder. In Connecticut, a judge ruled this means an employer cannot automatically refuse to hire a medical marijuana patient who tests positive on a pre-employment drug test, even if the employer is required to have a drug-free workplace under the federal Drug-Free Workplace Act.
All state medical marijuana laws allow an employer to prohibit marijuana use in the workplace and take action if an employee is impaired by the drug at work. However, an employer may not be able to use a drug test alone to prove impairment and may not be able to prohibit an employee from using marijuana for medical purposes outside of work hours. An employer would need to consider an employee’s job requirements, including any safety-sensitive duties, before deciding.
For now, it’s up to you.
Wisconsin law does not place restrictions on drug testing in the state, and marijuana remains illegal for medical or recreational purposes. Employers are able to look to their business needs when establishing consequences for a violation of a company’s substance abuse policy.
However, that may change. Employers should watch for pending legislation and be aware of how it might impact drug testing procedures, substance abuse policies and the consequences for marijuana use.
States that have legalized medical marijuana:
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Dakota
• Rhode Island
• West Virginia
States that have legalized recreational marijuana:
Terri Dougherty is a Certified Professional in Human Resources and an editor with J. J. Keller & Associates Inc., a nationally recognized leader in safety and regulatory compliance solutions. Dougherty specializes in information about marijuana, drug testing, wellness and labor law poster compliance.